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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Tuesday, May 31, 2011

Last week, the Prosecutor of the ICC announced that he was requesting arrest warrants again Khaddafi, his son and the director of military intelligence for crimes against humanity. The request has already been commented on on numerous blogs. Mark Kersten has produced an impressive number of posts over at Justice in Conflict. You can also read Dapo Akande's post on EJIL Talk! and David Bosco at the Multilateralist.

This situation raises a number of issues that could fill entire books. In this post and the next, I will propose a quick series of comments on some of them.

Today, a few thoughts on the discussed political impact of the indictments.

Indeed, on the more political end of the debate, the issue has been raised on the effect of the indictments on Khaddafi, and whether this will really contribute to peace, or on the contrary push the regime into a corner from which it will be harder to dislodge it. In other words, it's the traditional Peace Vs. Justice debate. I've always followed that debate with some puzzlement, because i'm not actually sure it's capable of a solution, both methodologically and normatively.

Methodologically, how does one evaluate the two in order to measure failure or success of a given policy? Usually, beyond the entrenched positions on both sides ("no peace without justice" on the one hand, and "no justice before peace" on the other), it's difficult to identify solid criteria that allow for a clear analysis. The two main obstacles, for me are the perspective adopted and the timeline.
As regards the perspective, it depends who is looking at the situation. For the immediate victims of mass atrocities, the answer might not be the same as for the bystander civilians who suffer from the conflict. While for a portion of the population, the simple end of hostilities is all they want, the victims and their relatives will want justice. How do we quantify these competing expectations?
As regards the timeline, what period of time do we look at to say that a solution worked? 6 months? 2 years? centuries? Today, policymakers tend to see things in extremely short term. We expect western democracy to work in countries that have never known it in a matter of years. The same goes with the oft-referred to, but elusive concept of "reconciliation". I'm not sure we have the tools to know immediately the effect of a given policy. In fact, this debate always reminds me of the answer apparently given by a Chinese official when asked in the 70s about the impact of the French Revolution: "it's too soon to tell".

Normatively, even if you could identify in hindsight what worked, it doesn't mean that you can draw conclusions for what might work in the next case. A typical example is amnesties. You can say that blanket amnesties sometimes allowed for a reasonably peaceful political transition, which gave way a few years later to prosecutions (e.g, Argentina). But this cannot be a model for future policy, because if you say from the start that the blanket amnesty will be repealed 10 years later, it kind of defeats the purpose of the amnesty in the first place.

More generally, linked to my previous point on the temporal dimension, if one reasons over centuries rather than decades, history shows that in fact all modern States were built on massacres without justice, and in most cases, there aren't any obvious problem today (you don't see the Italians holding a grudge against the Germans for the sack of Rome or the French holding grudges against Italians for the defeat in the Gallic Wars). Does that mean that this could be a model for today? Probably not, because the bottom line, is that at some point societies make moral choices, irrespective of utilitarian considerations.

Which brings me to my last point. The objective here is not to pass judgment on whether the moral choices made are sound or not. What is interesting is that, methodologically, the two "sides" of the debate are often not really talking the same language, so will never reach a compromise. In a way, and totally unoriginally, they are just continuing the age-old moral philosophy debate between utilitarians, who evaluate the goodness of an act through its consequences, and the proponents of deontological ethics, who look at the intrinsic goodness of an act (in a nutshell of course, there are other nuances to these two trends). It is certainly a fascinating debate, but unlikely to have a solution from an intellectual point of view, even if it seems that the "deontologists" have the upper-hand today.

In conclusion, because we have chosen a certain moral approach to justice today (which is still variable depending on the situation, as the debate on the death of Bin Laden showed), which implies accountability for certain acts, such as crimes against humanity, to put it bluntly, the issue of peace is irrelevant in that framework. It might not be the right choice, but even if they might be occasionally compatible in practice, we have to stop trying to pretend that we can reconcile the two conceptually.

Sunday, May 29, 2011

First of all, the judges for the Trial Chamber have been assigned. Among them is Dutch Judge Alphonse Orie, which is interesting, given the Netherlands' ambiguous role in Srebrenica. It is also ironic that a Dutch judge will be a part of accountability for what happened there, given that the a Dutch court decided in 2008 that the Netherlands were not responsible for what happened because they were under UN command, and that the UN itself could not be sued before a national court because of its immunity, thus removing all means of reparations for victims.

Second of all, the Court granted the Prosecutor's request to amend the Mladic indictment, which he had filed... over a year ago! One could of course cynically think that the imminent arrival of Mladic explains the sudden interest for a request which has likely been buried in the "to do" box for a year... But the professionalism that defines the work of the ICTY should guard us from such cynicism and the delay probably only means that the judge has been extremely thorough in reviewing the request and its accompanying documents.

Third of all, as predicted in my previous post, Karadzic's counsel has raised the issue of the effect of Mladic's arrest on the Karadzic trial, and the question of whether a suspension and joinder might be an option.

Thursday, May 26, 2011

The press is announcing that war crimes suspect Radko Mladic has been arrested in Serbia. The president of Serbia has confirmed this information in a press conference. He claims that this "closes a chapter" in the history of Serbia and its cooperation with the ICTY (although he did mention that Hadzic is still out there). I think this is wishful thinking. Because 1) the turbulent history of the Balkans and Serbia's role in it will not just disappear with Mladic's rendition to the ICTY. There will be a long trial which will delay any closure for many years. and 2) is sending Mladic for trial in The Hague really the way to deal with the past? I know that the ICTY has primacy over the case, but if I were Serbia, I would actually fight that and request to try him, under international supervision, in Serbia. The trial would definitely have more meaning in my opinion.

It will also interesting to hear the world leaders praise the arrest and the fact that Maldic will be brought to justice... just weeks after they praised the killing of Bin Laden as "justice being done"...

Finally, it will of course be important to see the effect of the arrest on ongoing cases at the ICTY. Let's see Mladic, for example, prove that he is not the author of the diaries that were entered into evidence in a number of cases. Also, if I were Karadzic's counsel, I would request a suspension of his trial and a joinder of cases, given the JCE that is claimed against both of them. That would create quite a procedural mess...

Tuesday, May 24, 2011

I'll be posting in Libya in the coming days, but for now a short follow up on the Amnesty law in Uruguay

A while back, I posted on the Uruguay amnesty law which has been universally condemned by rights groups and, at the time, found unconstitutional. In March, the Inter-American Court of Human Rights apparently condemned the law as well and in April, the Uruguay senate voted to overturn the law.

Well, last week, a vote in the House of Representatives to repeal the law failed. Apparently, there is some support for that law in the country, which, as I mentioned in my initial post, was approved twice by referendum.
Whatever one thinks of the law itself, there is clearly a clash of logics here. On the one hand, the universalist approach to human rights and on the other, the question of popular sovereignty. Indeed, this law is clearly not being imposed from the top by a dictatorial regime. It is, as far as I can tell, a reasonably functioning democracy. This certainly raises the question of the limits of outside intervention when a population chooses a certain path for itself and I find it disturbing that, in an era where "local ownership" is the new catchphrase, human rights activists are so adamantly trying to force a certain mechanism on a country which so clearly does not want it.

Monday, May 23, 2011

I have been frustratingly unable to blog in recent weeks, despite some nice topics to cover (most notably at the ICC). I hope I can rejoin the world of blogging soon, when the workload relents...

In the meantime, a short announcement. The International Law Reporter, a invaluable source of information on recent publications for many years, had announced that it was shutting down last February. Apparently, Jacob Katz, probably by popular demand, has changed his mind, and the blog has resumed work this week.

Friday, May 13, 2011

Regular readers of this blog will know that I was critical of the ICJ's advisory opinion as soon as it was released last July. I criticized it in a live blogging session from the ICJ on the day it was issued, and in subsequent posts, both here and on the Hague Justice Portal.

In an article just published in the Leiden Journal of International Law by myself and Yannick Radi, we explore more systematically and systemically the flaws of the opinion, considering that most of the difficulties that arise stem from the fact that the ICJ accepted to answer a question relating to non-State entities, i.e, the authors of the declaration of independence, rather than its core ratione personae jurisdiction, that are States and the UN.

You can follow the full extent of our reasoning in the article, and, for those who have a little less patience, the summary that we published on EJIL Talk!.

For those who have even less patience, one of the core arguments we make is that the acts of the Kosovo assembly, as established under the authority of the UNSC, can be attributed under international law to the UN, thus raising the rather interesting question of whether the UN can unilaterally declare the independence of a State. Pushing the logic even further, we argue that the ICJ implicitly recognises a new legal entity, Kosovo, to which the declaration could be alternatively attributed. I won't elaborate here, and let you read the article to see how we pulled this one off!

Wednesday, May 4, 2011

I won't retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden's killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare, Opinio Juris and Justice in Conflict.

One issue which has not been put forward in what I've read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I've seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don't explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn't believe that this argument was really valid and that the SC had ever had the intention to authorize such actions...

...And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:

“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.
...
“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable."
...
“The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law."

So, reading these paragraphs together in plain English, and if I'm not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of "bringing someone to justice" and "holding him accountable" and 3) considers that his death complies with international law.

Let's put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we're at it, we might as well abolish our national criminal law systems. To be clear, I'm not saying that Ben Laden should not have been killed. I'm well aware of the realities of politics. I'm just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.